By Dan Kennedy • The press, politics, technology, culture and other passions

L.A. Times probes N.Y. Times

On a day that the New York Times has broken yet another important story on the Bush administration’s war against civil liberties, the big question remains: Why did the Times wait more than a year before reporting that the White House was using the National Security Agency to conduct no-warrant wiretapping operations inside the United States, in possible violation of the law?

The Los Angeles Times takes a crack at answering that question today, and the findings are not pretty. James Rainey reports that anonymous sources inside the newsroom have told him that top editors considered running the NSA story before the 2004 presidential election but decided against it. Moreover, Rainey continues, one of the main reasons the New York Times finally decided to go with the story last week was so that it wouldn’t be scooped by a soon-to-be-released book, “State of War,” written by its own reporter, James Risen. (Risen’s was the lead byline on last Friday’s story.)

Rainey’s anonymous sources are directly contradicted by New York Times executive editor Bill Keller, who is quoted as saying:

The publication was not timed to the Iraqi election, the Patriot Act debate, Jim’s forthcoming book or any other event. We published the story when we did because after much hard work it was fully reported, checked and ready, and because, after listening respectfully to the administration’s objections, we were convinced there was no good reason not to publish it.

Still, Rainey’s article is certain to enrage partisans on both sides of the ideological divide. For Democrats, Rainey has raised the possibility that the nation’s leading newspaper (if that’s what it still is) killed a story that might have put John Kerry over the top last November. For Republicans, it looks as though Keller’s willingness to abide by the Bush administration’s national-security concerns was operative only so long as he wasn’t going to be made to look foolish by Risen’s book.

Based on what we know so far, it seems transparently true that the conservative critique is weak and contradictory. President Bush has been entirely unable to articulate a legal rationale for his actions, brazenly attacking those who leaked the existence of the spying program as unpatriotic, even though he may very well have broken the law by engaging in it in the first place.

As numerous observers have pointed out, and as Charlie Savage reports in today’s Boston Globe, all Bush had to do was seek warrants from a secret court under the terms of the Foreign Intelligence Surveillance Act — and such warrants are rarely turned down. He even could have sought warrants after the fact in emergencies. Yet here’s an example of the disingenuousness Bush offered at his news conference yesterday:

My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.

You’ve got to understand — and I hope the American people understand — there is still an enemy that would like to strike the United States of America, and they’re very dangerous. And the discussion about how we try to find them will enable them to adjust. Now, I can understand you asking these questions and if I were you, I’d be asking me these questions, too. But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

This all sounds reasonable unless you keep in mind the fact that Bush easily could have carried out the spying program in a way that would be indisputably legal. That’s why the normally deferential Tim Russert became so exasperated with Secretary of State Condoleezza Rice on “Meet the Press” this past Sunday, as she continually brushed aside Russert’s questions about why the White House didn’t simply follow the law.

“This is a case where if people commit the crime, then thousands die,” Rice responded. And: “[I]t is the president’s obligation within the law and within his constitutional authority to get the information that he needs to detect an attack and to act against it before thousands of people die.” And: “We’re in a war where if we allow people to commit the crime, then thousands die.” Well, yes, Madame Secretary. But why did the president risk violating the law rather than simply seek secret warrants? Rice: “I am not a lawyer.”

Today’s New York Times story about the FBI’s spying on domestic activists — written by Eric Lichtblau, who shared the byline with Risen on last week’s NSA article — reveals, among other things, that the FBI is very, very concerned about the Catholic Workers’ “semi-communistic ideology.” It’s a story of crucial importance, yet the Times hardly covers itself with glory. As Lichtblau notes, his reporting is based on documents obtained by the ACLU under the Freedom of Information Act, “provided to The New York Times over the past week.” A handoff, in other words.

As I wrote earlier this year, the FOIA — once a staple of investigative reporting — is now more effectively used by the ACLU, Common Cause and other public interest groups, which have the armies of lawyers that the media lack in order to keep pressing the courts to force the secrecy-obsessed White House to turn over public documents.

Of course, the White House isn’t the only institution that’s obsessed with secrecy. So, it would appear, is the New York Times, which has been as transparent as a pit full of muck on why it waited so long to publish the NSA story. It seems we can’t go more than a couple of months without a Times scandal. But we need to get to the bottom of this. Public editor Byron Calame is not scheduled to write again until Jan. 1. Can we wait that long?

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  1. Bill Baar

    Rockeffer was briefed over the years but now responds back to Cheney.“I feel unable to fully evaluate, much less endorse, these activities,” West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee’s top Democrat, said in a handwritten letter to Vice President Dick Cheney in July 2003. “As you know, I am neither a technician nor an attorney.”So maybe the NYT and Senate Democrats just in a bit of a fog about the law, and their duties.Or of course, the Democrats knew full well the law and their duties and were comfortable with all until it came time for NYT to sell some books and the Dems wanted to score a few political points.I think that’s the case as I can’t imagine any other reason why an ego like Jays would seek cover behind such humble words.

  2. mike_b1

    Gee Bill, way to obfuscate the point: Bush needlessly and callously broke the law.But yeah, let’s blame it on “THE DEMOCRATS!”

  3. Anonymous

    My question is, why would Bill Baar, of all wire links available, link to a Breitbart site, enriching an idiot’s income stream. Been on Drudge too long, Bill??Like to help oil that set up by clicking through Breitbart links??

  4. John Galt

    RE: bill baar. Either disingenuous or synaptic crisis, this vapid ‘note’ adds to the general global perception of the American populace as completely stupid. Ignorance is no longer an excuse.

  5. Steve

    What I want to know is – who does the Bush Administration want the NSA to spy on that they don’t even want to seek a RETROACTIVE SECRET WARRANT for? They can seek a secret warrant up to 72 hours AFTER the wiretap, and those warrants are almost never refused (2 out of more than 10000 is a figure I’ve seen cited).But they don’t even want to do THAT? Who the heck are they spying on?Oh, and this is on top of the spying on left-wing groups that the FBI is conducting.

  6. Paul

    Im surprised you didn’t mention Newsweeks story that the White House summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to beg them not to publish! This only reminds me of of a different President summoning the Times to beg them not to publish advance warning of the Bay of Pigs invasion and later regreting that decision!Why did Newsweek and NOT the NY Times break this juicy tidbit and why (so far has the Times refused comment?

  7. Dan Kennedy

    Paul — Yes, indeed. Here is the link to the Newsweek piece, written by Jonathan Alter. Let me defend the Times for a moment and point out that it couldn’t report what I’m sure was an off-the-record meeting with the president. The Times did report that the White House tried to kill the story; it just didn’t offer any details.

  8. Bill Baar

    re: John Galt.I like Drudge. He’s got handy list of all the links. If you don’t like Breitbart, just go direct to Rockefeller’s letter.Hugh Hewitt linked me today re this post.Rev Scot Well’s told me I’m an idiot too.That’s fine, but like FDR and Fala, better not say anything harsh about my dog.

  9. Anonymous

    >>Bush administration’s war against civil liberties<<Oh give me a break!I would guess that most of America doesn’t mind wiretaps on calls going in and out of Afghanistan, during times of war.

  10. mike_b1

    Right…since Afghanistan has such a robust telecom system…that’s all that the Admin was doing.Clearly you weren’t listening to the President’s press conference…or reading the reports.

  11. Provincial Congress

    Steve,My guess is that this operation involved some technical innovations over previous wiretap programs. The Times withheld classified details about the program in its original article.

  12. Steve

    Provincial,Even if this was the case, I still don’t see why this would prevent the administration from making everything legal by seeking a retroactive, secret warrant. What possible reason could there be?

  13. Anonymous

    >>Clearly you weren’t listening to the President’s press conference…or reading the reports. <<I’ve been watching the reports carefully.These instances of “spying” were for calls between the US and Afghanistan and/or Iraq.I don’t think most of America has any problems with that.Most assumed (and expect!) they were doing it anyway….so it’s no big shock.

  14. mike_b1

    If any of that were true, none of us would be here discussing this.

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